Acórdão nº 9230161 de Court of Appeal of Porto (Portugal), 01 de Outubro de 1992
Magistrado Responsável | CARLOS MATIAS |
Data da Resolução | 01 de Outubro de 1992 |
Emissor | Court of Appeal of Porto (Portugal) |
N Privacidade: 1 Meio Processual: APELAÇÃO.
Decisão: REVOGADA PARCIALMENTE.
Área Temática: DIR PROC CIV.
Legislação Nacional: CPC61 ART1044 ART1051. CRP84 ART116.
Sumário: I - Promana do artigo 1051, do Código de Processo Civil, que a decisão proferida numa acção de posse judicial avulsa não impede que o vencido faça valer o seu direito pelas acções possessórias ou pelos outros meios competentes. O que conduz a que a mesma não pode formar caso julgado material. II - O vencido poderá, pois, sempre discutir a posse numa acção possessória, ou a propriedade numa acção comum, sem que lhe possa ser oposta eficazmente a decisão proferida na acção de posse ou entrega judicial. III - O pressuposto necessário da posse judicial avulsa é a exibição, pelo autor, de um título translativo de propriedade - artigo 1044 do Código de Processo Civil; eventualmente, será ainda necessário, desde que o acto seja susceptível de registo, documento comprovativo de que o registo definitivo se acha feito ou em condições de o ser - 2ª parte do nº 1 do referido preceito. IV - Todavia, não é de fazer a exigência de tal documento no caso de aquisição originária do direito de propriedade, como é a hipótese da expropriação por utilidade pública que importa a extinção do direito real do expropriado e a constituição de um novo...
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